The increased use of smartphones and improved internet penetration have seen an increase in the use of mobile applications (mobile apps) worldwide.
The development of apps related to financial technology (Fintech) has had a positive impact on the financial services industry in Kenya and the region.
Kenya, being the origin of mobile money thanks to mobile money services such as M-PESA, is expected to continue to play a leading role in this space.
INTELLECTUAL PROPERTY RIGHTS OF MOBILE APPS
Mobile apps are often created by software developers on behalf of their clients. It is critical that developers or owners of mobile apps ensure that their legal rights are protected.
As such, the mobile app software development agreement entered into between the software developer and the client should be clear on who owns the intellectual property rights in the mobile app.
Where a client intends to ensure that its ideas are kept confidential, it may require the developer to execute a non-disclosure agreement.
In addition, where an employee develops a mobile app, the employer should ensure that the employment contract contains a clause stipulating that all intellectual property developed by the employee during the course of employment will be assigned to the employer.
Where the developer is a corporate entity such as a company, deeds of assignment should also be executed by individual developers assigning all rights to the client. Where appropriate, the developers should also waive their moral rights in the mobile app developed.
The waiver of moral rights would for instance ensure that the developers do not object to treatment of the mobile app in ways that they would consider to be derogatory.
Different forms of protection for different purposes
Once a mobile app has been developed, it is important for the mobile app owner to consider the various forms of protection available. Protecting the mobile app will enable the owner to enforce its rights in the app in the event that they are infringed by third parties.
In this regard, the four main forms of legal protection that may be considered are Trade marks, Copyright, utility models and patents.
- Copyright protects the various components of a mobile app such as source code, object code, graphics and text. Under Kenyan law, registration is not a prerequisite for copyright protection. Copyright protection accrues once work that is subject to copyright is recorded in a permanent form. However, registration is still recommended since constitutes prima facie evidence of copyright ownership.
- Trade mark registration, on the other hand, protects the name or logo of the mobile application. It is important that before any use or registration of the proposed trade mark is undertaken, a trade mark clearance search is carried out to confirm that the proposed trade mark is available. Trade mark registration should ideally be undertaken in all the territories where it is envisaged that the mobile app will be used. An owner of a mobile app may go further and register a domain name in respect of the website that will be used together with the app.
- It is generally recognised that a process or method embodied in an app may be patentable. In this regard, the manner in which a mobile app communicates with a server or another mobile device may be the subject matter of patentability. The requirements for patentability (such as novelty and inventive step) must be met. Patent protection is for 20 years from the filing date.
- In instances where it is not possible to secure patent protection relating to a mobile app, it may be possible to obtain a utility model certificate. Under utility model protection, there is no requirement for an inventive step, as with the case of patent protection. Utility model protection is for 10 years from the filing date.
Terms and conditions should not be overlooked
In addition to the measures that could be taken to protect legal rights in a mobile app, the owner of an app should have in place terms and conditions setting out when and how third parties may use the software.
The terms and conditions should also contain appropriate limitations of liability arising from the use of a mobile app.
Another critical requirement is a privacy policy to govern the manner in which the personal data of users will be collected and used. These are some of the key issues that are relevant in the legal protection of mobile apps.
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